“The method of identification utilized here ... is simply a matter of comparison of items of physical evidence to determine if they are reciprocal”
How later courts described this case
- “The method of identification utilized here ... is simply a matter of comparison of items of physical evidence to determine if they are reciprocal”
- “Bite mark comparison evidence is currently admissible in at least thirty-five states.”
Written by the judges who cited it.
The opinion
Dissenting Opinion
DeBruler, J.
The victim of this crime was killed in Posey County on December 24, 1973. Posey County is located on the Ohio River in the southern most part of the State. Appellant was arrested for the killing in Lake County on December 12, 1974. Lake County is in the northern most part of the State on the shores of Lake Michigan. Upon his arrest, appellant was taken to jail in the city of Gary in Lake County, where he was immediately given an advice of rights in fulfillment of the requirements of Miranda v. Arizona, (1966) 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 . This first advisement of rights included the following statements:
“You have the right to talk to a lawyer for advice before we ask you any questions and to have him with you during questioning.
If you cannot afford a lawyer, one will be appointed for you before any questioning if you wish.
If you decide to answer questions now without a lawyer present, you will still have the right to stop answering at any time. You also have the right to stop answering at any time until you talk to a lawyer.”
*663 Appellant then signed a waiver of rights form. He was interrogated and denied the crime. Thereafter, during further interrogation and prior to making any self-incriminating statements, appellant told his interrogators that he wanted to talk to a lawyer before answering any further questions. The interrogating officers then replied that he could call an attorney and employ an attorney of his choice, but that if he could not, he would get an attorney when he arrived back in Posey County where one would be appointed for him. The interrogation was then continued in Lake County and appellant made his confession. Appellant testified that he had only fifty dollars at the time and did not feel that was enough to hire a lawyer.
In sum, the advice of rights came to the attention of appellant from two sources: the standard written form and the oral statement of the interrogating officer. The written form correctly granted the right to the advice and presence of a lawyer before answering questions. The oral statement of the officer recanted the grant of that right and substituted for it the right to have counsel at some unspecified time in the future several hundred miles away. The oral statement was incorrect and misleading.
Faced with this sequence of events, namely, the correct written advisement, the attempted exercise of the right to counsel, and the incorrect oral advisement, anyone would reasonably believe that there was no immediate right to appointed counsel before submitting to further questioning. As the advisement of rights was ambiguous and misleading here, the requirement of Miranda , that the explanation of the right to counsel in such advisements be both effective and express was not satisfied. Sotelo v. State, (1976) 264 Ind. 298 , 342 N.E.2d 844 ; Goodloe v. State, (1969) 253 Ind. 270 , 252 N.E.2d 788 . The incriminating statements made to the police should have been suppressed. I would reverse and order a new trial.
Note. — Reported at 359 N.E.2d 513 .